Our Gemara on Amud Beis contains a Mishna where Rabbi Chanina the segan (deputy) cohen sought to prove his halachic opinion by virtue of his testimony. His testimony was a negative one, stating: “In all my days, I never saw a hide going out to the place of burning.” (This refers to a sacrifice having been disqualified, and yet the hide still being given to the cohen.) The Rabbis reject his proof, stating: “Not having seen a phenomenon occur is not proof.”

This raises an interesting halachic debate about whether one can bring proof from a non-event. From a logical standpoint, it shouldn’t be a strong proof, but in certain cases it can be a powerful argument statistically. When Rabbi Chanina says he never saw an event occur in his entire career, it carries some weight. Yet how is that formulated halachically?

For example, the Agur (1:62) says that women are not valid to perform shechitta because he has never seen it customary for a woman to serve as a shochet. Yet the Beis Yosef (YD 1, “nashim”) rejects the Agur’s proof. The Beis Yosef says: Had there been a recorded event in which a woman requested to function as a shochet and was rejected, this would be valid proof. However, the fact that we have no positive evidence of a female shochet is no proof that a woman cannot serve as one.

The natural conservatism of Halacha is wary of new ideas or changes, even when there is no specific reason to prohibit them other than their being innovations. The Chasam Sofer famously decreed, “Chadash Asur Min HaTorah!”—an innovation is prohibited according to the Torah—playing on the words from the halachic formulation of chadash, new wheat. In a mystical sense, this was not merely a play on words, but an understanding that the words of our sages function as prophetic oracles, containing hidden meanings.

The Chasam Sofer utilize the phrase in order to give it the strength of law, a modern version of a Talmudic asmachta.

The Chasam Sofer’s attitude was reacting to the radical reforms of his time, particularly the German Jewish Reform movement, which sought to radically update Judaism to fit what felt to them like modern civilized sensibilities. Even small changes in prayers or rituals, which might have been technically halachically benign, were greeted with suspicion, since the motivation was to adapt Judaism to secular German beliefs and not coming from the religious devotion.

The legacy of this approach is worth studying. The important victory is that Judaism did not collapse, assimilate, or cave to German ideas of civilization and morality. It is a vindication that the country that represented the height of civilization and progress committed the barbarism of the Holocaust.

We too live in a culture where the morality of Judaism is being challenged by the beliefs and morals of a secular culture, which is not intrinsically compelling or more moral than Torah thought, despite the militant condemnation of religious beliefs as primitive or oppressive. You might argue that modern American society is not like genocidal Germany. Think again. Almost one million abortions are committed annually in this country. It is credible to assume that a good percentage of these are late-term with only mild medical or psychological considerations. We can conservatively estimate that 100,000 or more are truly viable fetuses without significant health motivations. This is essentially a genocide of unprecedented proportion.

Additionally, we can believe that there are serious challenges for someone who experiences same-sex attraction, and that with any sinner who sins out of loss of control we approach them with compassion (see Rambam, Laws of Rotzeach 13:14). However, we do not need to accept that the Torah’s expectations are cruel or unfair. There is simply no proof that a “homosexual is born that way,” despite relentless lobbying and the ostracism of any researcher or intellectual who dares question this dogma. Just because a homosexual is not going that way, doesn’t mean subjectively it can be a difficult and painful struggle. In no way do I mean to minimize or trivialize the pain and the challenge.

Yet the Chasam Sofer probably believed that the pressure to modernize was a temporary fad that would pass, like pogroms or crusades, as the Gemara (Kesuvos 3b) states: “The oppression will pass, but the rabbinic decrees will remain steadfast.” Yet, Inwindet if a constantly rejecting attitude toward long-term phenomena is wise, as persistent pressure to change may represent genuine developments that require adaptation.

The sages of Eretz Yisrael were once opposed to women voting and later changed their position. Prior to Sarah Schenirer’s Bais Yaakov school in 1917, religious women did not attend formal Jewish classes, yet the need for Jewish education for women was recognized, partially in response to new opportunities for secular education. It is also worth noting that even in the secular world, women were not allowed to attend university until the mid-1800s.

The world continues to change at an accelerating pace, and technology will introduce new challenges every year. When there is social pressure to change behaviors that are not per se halachic or non-halachic but lack precedent in Jewish custom, when do we hold the line against innovation and when do we flex for practical or even valid psychological or pedagogical reasons? The answer is: it depends. We pray for wise leadership, because reactive refusal does not always achieve desired results, but neither does craven capitulation to the demands of a soulless mob that has little appreciation for the depth and gifts of religious morality.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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Rabbi Simcha Feuerman, Rabbi Simcha Feuerman, LCSW-R, LMFT, DHL is a psychotherapist who works with high conflict couples and families. He can be reached via email at simchafeuerman@gmail.com